Aside from the few cases of race discrimination which hit the headlines, we don’t hear much about how Britain’s equality laws are upheld. To the casual observer, this probably seems quite natural. The Employment Tribunal system is so far removed from our everyday lives that we barely perceive it, assuming that it simply toils away in the background, resolving other people’s discrimination problems ten a penny.
But what happens when someone needs to use its services – say, for a race discrimination claim?
Firstly, they seek advice. The first port of call here will often be a Voluntary or Public Sector agency, in the hope that lawyers’ fees can be avoided (at least in the early stages of the process).
A 2009 report by the Equality and Human Rights Commission (EHRC)* aimed to map advice provision on discrimination issues across the UK, and found that in Scotland, there were substantial ‘deserts’ where no specialist advice could be found. In the larger cities, advice was available but tended to concentrate on basic rights; detailed legal information and representation were rare. National helplines were available, but often unsuitable as their advice was geared towards English Tribunal system users. Although marketing was not examined in the EHRC report, the extent to which these helplines are successfully promoted in Scotland is debatable.
Since that report, the availability and quality of advice in Scotland has arguably plummeted. Many of the organisations described in 2009 no longer exist; more still no longer have funding for case work. The EHRC no longer funds this work, and its own helplines for individuals and specialist advisers have been closed down, replaced with a single contracted out service based in England.
If advice cannot be easily obtained, potential race equality claims will regularly fall at the first hurdle. This is to say nothing of the many, many cases where advice is deliberately not sought, due to fear of making the situation worse or simply not knowing that rights exist.
Where it is available and sought, the effectiveness of advice is hampered by multiple barriers to making a claim at Tribunal. The capacity of the advice service is one issue – if a client has to be referred on elsewhere for help with an application or representation, will they feel confident in seeking it? To even reach application stage, a range of resources are required. Lack of resources, in short, is an insurmountable barrier for some.
Resources such as time. Time for internal grievance and/or disciplinary processes to run their course, if someone is still in work. Time to organise thoughts, facts and details into something worthy of consideration at Tribunal. Other vital resources include language skills, literacy, numeracy and, perhaps most of all, the confidence and self-assurance to put the case across well, in defiance of the employer’s counter arguments.
If these resources are available and representation can be found, how is the case to be paid for? It’s a little known fact that in discrimination cases, some low income Employment Tribunal claimants can qualify for legal aid in Scotland. CRER contacted the Scottish Legal Aid Board (SLAB) using a Freedom of Information request, and they kindly provided information about how widely used legal aid is in discrimination cases, disaggregated by a range of equality characteristics. A scan of the information provided can be downloaded below.
The numbers were too small to reliably analyse, which in itself is a valuable finding. Since 2002, a total of 58 legal aid applications have been made in discrimination cases overall. 30 of these were refused, 16 were granted.
Disaggregation showed that SLAB monitored applications by sex, age, disability, ethnicity and marital status. Sex and age were regularly recorded, but the others were not. Ethnicity information had been recorded for only 11 of the cases. Whether this was due to differences in recording procedures over time, or some other reason, is unknown. Of the 11 recorded applicants, the only person from a non-white ethnic background was a single Pakistani Scottish / Pakistani British applicant, whose application was refused.
The response from SLAB also outlines the number of applications for advice and assistance support in race discrimination Employment Tribunal cases. For all 305 discrimination cases where support was applied for (regardless of the type of discrimination involved), the claimant’s ethnicity was recorded in only 17 cases. Only one of those cases was brought by a claimant from a non-white ethnic background. Again, far too little data to allow any assumptions to be made.
More precise, however, is the data on the number of race discrimination claims made. From a total of 305 discrimination cases where support was applied for (regardless of the claimant’s ethnic origin), 48 related to race and a further 7 to race and one or more other protected characteristics (55 cases in total). Over the ten year period, that’s less than six race discrimination claims per year.
In short, we don’t know enough about race equality in the Scottish Employment Tribunal system to ascertain whether access to it is equal. What we do know, without the need for statistics, is that considerably more than six people per year could use support to legally address racism at work in Scotland. Until the barriers to justice are tackled, for the most part the Tribunal system will only ever be resolving other people’s discrimination problems.
Response from Scottish Legal Aid Board
*Borland, Griffiths, Rees et al (2009), Responding to discrimination: the geography and geometry of advice provision in England, Scotland and Wales. Published by the Equality and Human Rights Commission.